7.3 Determining the Existence of a Public Policy

• Library: Virginia Business Torts (Virginia CLE) (2019 Ed.)

7.3 DETERMINING THE EXISTENCE OF A PUBLIC POLICY

7.301 In General. When a statute expressly provides in so many words: "It is the public policy of the Commonwealth that . . . ," discharge of an employee in violation of that policy most often gives rise to a retaliatory discharge claim. Likewise, when a statute merely states a public policy without using those "magic words"—such as a criminal statute—discharge of an employee in violation of that statute's policy is also likely actionable. The following cases illustrate the difficulties in determining whether and when a public policy may be inferred.

7.302 Lawrence Chrysler Plymouth Corp. v. Brooks. Some see the court's decision in Lawrence Chrysler Plymouth Corp. v. Brooks ⁷¹ as backing away from the Bowman exception to the at-will rule. The facts of the case led to a simple and logical holding by the court that the public policy

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underlying a retaliatory discharge claim must be contained in a "Virginia statute." ⁷² The ruling's specific choice of the word "statute"—which seemed appropriate at the time and answered the question before the court—has caused considerable debate and disagreement among employment lawyers.

Brooks, an automobile body mechanic, refused to perform repairs by "clipping" two halves of wrecked vehicles together because he believed the method was unsafe. He was discharged. The court held that Brooks, as an at-will employee, could not maintain an action for wrongful discharge because he could not identify any "Virginia statute" that established a public policy his employer violated in requiring him to perform the repairs. Hence, his termination was not against public policy. ⁷³

Brooks asserts, on brief, that "to repair a car in such a manner as was requested in this case is an obvious violation of both statutory and common law duties, including duties under the Consumer Protection laws, the Automobile Salvage laws . . . and common law duties of the dealership concerning the exercise of due care." We simply find no language in Code §§ 46.2-1600 through -1610 (which govern salvage, nonrepairable, and rebuilt vehicles) that supports Brooks' position. More telling, Brooks does not specify what precise statute that Lawrence Chrysler purportedly contravened.

In Bowman and Lockhart, the plaintiffs, who were permitted to pursue causes of action against their former employers, identified specific Virginia statutes in which the General Assembly had established public policies that the former employers had contravened. Unlike the plaintiffs in Bowman and Lockhart, Brooks does not have a cause of action for wrongful discharge because he is unable to identify any Virginia statute establishing a public policy that Lawrence Chrysler violated. We also reject Brooks' attempt to expand the narrow exception we recognized in Bowman by relying upon so-called "common law duties of the dealership." ⁷⁴

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7.303 City of Virginia Beach v. Harris. In City of Virginia Beach v. Harris, ⁷⁵ decided the same day as Mitchem v. Counts, ⁷⁶ the Virginia Supreme Court held that a police officer's termination for securing warrants against an individual in contravention of his supervisor's orders did not violate public policy. The police officer claimed that section 18.2-460 of the Virginia Code, which sets the elements and criminal penalties for obstruction of justice, and former section 15.1-138, which required police officers to prevent the commission of crimes, enforce laws, and detect and arrest offenders, formed the basis for specific public policies. The court disagreed, finding that not only did the statutes not contain sufficient indicia of public policies, but that the police officer was not within the class of individuals intended to benefit from the public policies. ⁷⁷

The court first noted that, to an extent, all statutes reflect some...